Greater New Orleans

Gov. Bobby Jindal and Attorney General Buddy Caldwell are at odds on whether to veto a bill that would kill a wetlands damages lawsuit filed by the Southeast Louisiana Flood Protection Authority-East.
(NOLA.com | The Times-Picayune archive)

Attorney General Buddy Caldwell has recommended that Gov. Bobby Jindal veto legislation that would kill an environmental damages lawsuit filed by the east bank levee authority against 97 energy companies because of concerns the language prohibits local governmental entities from filing lawsuits against energy companies for past or future actions, according to a Tuesday letter to Jindal released by Caldwell Wednesday evening (June 4).

Caldwell said the language of Senate Bill 469 "is vaguely broad and since it deals with the elimination of causes and rights of action which protect Louisiana, I recommend that it be vetoed."

But Jindal is still leaning towards signing the bill, according to a response sent to Caldwell Wednesday by Jindal's executive counsel.

"I must respectfully disagree that the proper course of action is to veto the bill," wrote Executive Counsel Thomas Enright Jr., who wrote the letter after discussing the bill Wednesday morning with members of Caldwell's staff.

"We are satisfied that the concerns expressed by your office are the same as those offered by the opponents of the bill during the session and that those concerns were properly considered and publicly debated at length," Enright said.

Caldwell's veto recommendation was labeled a political maneuver by Sen. Robert Adley, R-Benton, the chief sponsor of the legislation that also was authored by Sen. Bret Allain, R-Jennings. Adley said during an interview that he believed Caldwell was acting on behalf of trial lawyers who have financially supported his campaigns for office.

"This is probably the worst political gamesmanship by one of our statewide elected officials that I've ever experienced," Adley said. He said that the bill was debated for three months in the Legislature, but Caldwell did not ask to testify before any of the committees considering the bill.

"He never showed up one time, never uttered a word of what he thought was right or wrong about the bill," Adley said.

Adley said it also is ironic that it would be Caldwell who would have to defend the law if it is signed by Jindal and then its constitutionality is challenged by the levee authority or other parties.

Also disagreeing with Caldwell on Wednesday was Louisiana Association of Business and Industry executive director Stephen Waguespack. The industry organization also supported the bill.

"We've just come out of a three-month legislative session during which these issues were thoroughly deviated in the halls of the Capitol," Waguespack said. "And here in the 48 hours since it's ended, we're seeing lots of legal memoranda objecting to it. Where was this analysis during the last three months?"

Waguespack also linked the call for a veto to trial attorneys, saying, "The dollars at stake are too big," and warning that the bill's opponents will even go to court to block its effects if Jindal signs it.

This is not the first run-in between proponents of killing the Southeast Louisiana Flood Protection Authority-East lawsuit and Caldwell.

In March, a Baton Rouge judge upheld Caldwell's approval of the authority's vote to hire a law firm to file the suit, in throwing out a lawsuit filed against Caldwell by the Louisiana Oil & Gas Association as frivolous.

In his letter to Jindal, Caldwell said that Senate Bill 469 "clearly contains very broad and all-encompassing language prohibiting the state and all local governmental entities from pursuing (or having the right to pursue) any cause of action arising under" a variety of federal and state laws.

"Notably, only certain listed causes of action are specifically preserved" by the bill, Caldwell said.

"No one can currently quantify or identify all of the causes of actions which will be swept away if this bill becomes law," Caldwell said.

Caldwell's arguments in part mirrored those expressed by 23 law school professors and former Orleans District Court Judge Calvin Johnson in letters on Friday and Tuesday also asking Jindal to veto the bill.

The letters -- the second was a rewrite that added 20 names to the original request -- also focused on concerns that the bill could get actions filed by local governmental authorities against BP resulting from the 2010 Deepwater Horizon oil spill thrown out.

Caldwell avoided that argument in his letter, mentioning only that he had been asked to review the legislation in part because of that concern.

Late Wednesday, Loyola Law School environmental law professor Robert Verchick, the lead author of the law professors' letter, sent a letter to Enright saying the governor's legal adviser had misrepresented the public participation in the bill when it was before the Legislature.

Verchick said that when the bill was assigned to the Senate Judiciary A committee, it was clear the committee's membership would kill it, so it was "hastily moved, rewritten, and then heard in the Senate Natural Resources Committee less than 18 hours later."

"There was next to no public notice, and debate on the bill was thus cut short," Verchick wrote.

Representatives of several groups, and the attorneys representing the levee authority, brought up the lack of public notice at the committee meeting, but their requests for a delay were ignored by the committee.

He said a similar thing happened when the legislation moved to the House of Representative, where it was assigned to the House Natural Resources Committee chaired by Rep. Gordon Dove, a supporter of the legislation, who Verchick said cut off debate.

And Verchick for the first time questioned whether the bill will even succeed in blocking the levee authority lawsuit.

"The bill says it applies only to 'local government entities,' a term with a specific legal meaning that does not include regional flood protection authorities or the levee districts that make up SLFPAE," he said. And where it does mention regional flood protection authorities, the bill fails to mention the levee districts, so the Orleans, East Jefferson and Lake Borgne levee districts' claims in the lawsuit may still be viable, Verchick said.

Sen. J.P. Morrell, D-New Orleans, said a number of legislators who voted for the bill are still confident it doesn't affect BP claims, but wished they'd added an amendment to specifically address that concern.

"No one was aware that the bill could have affected BP claims," Morrell said.

Sen. Conrad Appel, R-Metairie, who voted against the bill, also expressed concern about its impact on BP claims.

"How can we take this risk? How can we take the risk of losing tens of billions of dollars?" Appel said. "I'm incredibly nervous."

He said the governor could veto the bill this year and bring it back next year after the concerns raised by the attorney general and others are resolved.

Adley said he doesn't believe the state's claims are in jeopardy because they're covered by the federal Oil Pollution Act, and not by state law. And he said it's ironic that the attorneys representing the levee authority in its suit against energy companies said when it was filed that the suit would not impinge on the state's BP claims when former Coastal Protection and Restoration Authority chairman Garret Graves warned that it could have just such an effect.

"And now their position is that this could affect the BP claims," he said.